Judgment :- Arunachalam, J. Rajendran (A-2) in S.CNo.98 of 1985 on the file of the Principal Sessions Judge, Periyar District at Erode, has preferred Crl.A.No.198 of 1986 while A-l Nataraja Gounder in the same sessions case has preferred Crl.A.No.212 of 1986. Both of them challenge the sustainability of the verdict of the Sessions Court convicting the latter under Sec.302, I.P.C. and imposing life imprisonment and convicting the former under Sec.323, I.P.C. and sentencing him to undergo six months rigorous imprisonment. 2. The occurrence, which led to this prosecution, had taken place at or about 7 a.m. on 15. 1985 at Santhikattu thottam situated in Eerasanam Patayam Village. The appellant sarestated to have attacked fatally Palanisaniy Gounder, armed with a bamboo stick (A2) and Valayam (A-l) respectively. P.W.3 Palaniammal is the wife of the deceased. This couple had no children. Deceased owned ten acres of land in Santhikattu thottam, out of which disputed one and half acres on the northernside, remained uncultivated. There was a civil litigation between deceased Palanisamy Gounder and Thirumayammal, mother of A-l. P.W.3 claimed that after succeeding in the litigation, her husband took possession of the disputed land where the occurrence had taken place. She woulid also have it that in the Tamil month of Avani in the preceding year, her husband had let out on lease the land obtained through court to Palanisamy Gounder and Kandasamy Gounder, both not examined. Though the Amin (bailiff) was not examined, P.W.8 Babujan Assistant, Court ol District Munsif, Dharapuram, was examined to speak about execution of the decree by the deceased and produced records to indicate hand ing over of possession of the decreed land to the deceased. P.W.1 Ganesan, nephew of the decease and P.W.2 Subramania Gounder brother of the deceased, have also spoken about the civil dispute between Thirumayammal and the deceased and in effect have corroborated the version of P.W.3. It must also be stated, that A-2 Rajendran and his father A-l Naiaraja Gounder are related to the deceased. The grand father of Thirumayammal and the maternal great grand-father of the deceased were brothers. 3. P.W.5 Nachimuhu was the farm servant of the lessee of the deceased, in the once disputed land. On 15. 1985 in the evening, P.W.5 found the appellants digging earth in the leased out land and promptly complained to the deceased, of all that he had seen. 3. P.W.5 Nachimuhu was the farm servant of the lessee of the deceased, in the once disputed land. On 15. 1985 in the evening, P.W.5 found the appellants digging earth in the leased out land and promptly complained to the deceased, of all that he had seen. Deceased directed P.W.5 to inform the lessees to be present at Santhikattu thottam on the next morning, when he would himself be present at the venue. P.W.1, who was present then, was directed by the deceased to get his father P. W.2 to Santhikattu thottam on the next morning. At or about 7 a.m. on 15. 1985 P.Ws.l to 3 along with the deceased proceeded to Santhikattu thottam. Palaniathal, the sister of the deceased also joined them. Murugan, Loolayam and Subban all not examined, were working in the cotton field of P.W.1. As soon as they reached Santhikattu thottam, they noticed A-2 driving a double bullock-cart, through the uncultivating piece of land and stopping it near a Karuvcl tree, in the mid portion. A-l took out a spade from the cart and attempted to dig earth. Immediately deceased exclaimed as follows: The three labourers, who were working nearby, ran away on noticing the dispute between the deceased and the appellants. A-l threw away the spade and questioned the deceased as follows: Soon thereafter he picked up M.O.1 valayam from the cart and attacked on the head of the deceased. Since the deceased warded off, he sustained an injury on his right hand. Even the second cut aimed by A-l was warded off by the deceased. A-2 picked up the bamboo stick and beat on the left hand of the deceased twice. Deceased Palanis-amy Gounder shouting ‘don’t beat’ ran towards the cotton field, in which process, his dhothi M.O.4 and towel M.O.5 fell down. Appellants chased the deceased and A-f with the valayam beat on the head of the deceased our times. A-2 with the bamboo stick, beat on the head of the deceased twice. When the deceased attempted to run further away, with M.O.I valayam, A-l stabbed on the back portion of the deceased. In this turn A-2 beat the deceased on his left flank. On receipt of all the injuries the deceased fell down, south of the ridge. Appellants threw away their weapons in the cotton field west of the r salai and escaped from the scene. In this turn A-2 beat the deceased on his left flank. On receipt of all the injuries the deceased fell down, south of the ridge. Appellants threw away their weapons in the cotton field west of the r salai and escaped from the scene. The occurrence was witnessed by P.Ws.l to3.All of them went the deeeased and found him dead. M.O.6 the shert of P. W.2 and M.O.7 the jacket of P. W.3 get stained with blood, when they lifted the fallen down victim. P.W.1 proceeded to Oothiyur Police Station and complained about the occurrence, at or about 9 a.m. to P.W.11 Sankaran, the then Sub inspector of Police, P.W.11 reduced into writing the oral complaint of P. W. 1 and on Ex.P-1, the record so mace, obtained his signature. P.W. 11 registered Crime No. 124 of 1985 under Sec.302, I.P.C. on Ex.P-1 and prepared the express printed first information report Ex.P-16, Exs.P-1 and P-16 were for warded to theconcerned Magistrate, while copies of Ex.P-16 were forwarded to the superior police officers. P.W. 11 thereafter proceeded to the scene of occurrence. P.W.22 Ramasamy, Inspector of Police received a copy of the first information report at or about 11.45 a.m. on 15. 1985 and took up investigation. He reached the scene and prepared the observation Mahazar ExP-4and thescene sketch Ex.P-17. He directed P.W.6 Unni to take photographs of the corpse in different angles. M.Os.H) to 12 are the photographs and the corresponding negatives. P.W.6 also took photographs of the cart inclusive of the bullocks.‘M.Os.13 to 15 are the prints and negatives. 4. P.W.12 conducted incuest between 2.30 p.m. and 6 p.m. during the course of which he examined P.Ws.l to 3 and others. Ex.P-18 is the inquest report. After inquest, he sent the dead body through police constable Sithan (P.W.9) with a requisition Ex.P-2 to the Government Hospital, Kangeyam for the conduct of post-mortem. Thereafter P.W.12 seized M.iO.16 blood stained earth and M.O.17 sample earth south of the karuvela tree; M.O.23 blood stained earth and M.O.24 sample earth found on the western portion of the karuvela tree. He also seized M.Os.4 and 5 the blood stained dhothi and towel of the deceased. From the southern portion of the cotton field, he seized M.O.3 series cheppels of the deceased M.O,25 blood stained earth and M.O.26 sample earth. Again from near the corpse he seized M.O.27 blood stained earth and M.O.28 sample earth. He also seized M.Os.4 and 5 the blood stained dhothi and towel of the deceased. From the southern portion of the cotton field, he seized M.O.3 series cheppels of the deceased M.O,25 blood stained earth and M.O.26 sample earth. Again from near the corpse he seized M.O.27 blood stained earth and M.O.28 sample earth. All these material objects were seized under mahazar Ex.P-5, attested by P. W.7, P.W.7 has also attested Ex.P-6 mahazar, relating to seizure of M.Os.6 and 7, blood stained shirt and jacket of P.Ws.2 and 3. P.W.12 also seized M.Os.l and 2 stated to have been thrown away by the appellants under mahazar Ex.P-7 attested by P.W.7. At or about 8 p.m. on the same night, P.W.12 seized M.O.18 a crowbar; M.O.19 bamboo basket and M.O.20 a spade under mahazar Ex.P-8, attested by P.W.7. At 9 p.m. On the same night, P. W. 12 arrested the appellants from a bamboo bush, on the southern bank of Amaravathy river, in the presence of P.W.7, M.O.21 dhothi of A-l was seized under mahazar Ex.P-9, attested by P.W.7. 5. P.W.4 Dr.Chandramathi, on receipt of Ex.P-2 conducted autopsy on the dead body at 8 a.m. on 15. 1985 and found the following external injuries: "(1) An incised injury 2 1/2" x 1/4" x bone deep over the left parietal region of the scalp, posteriorly. .(2) An incised injury 1 1/2" x 1/4" bonde deep over the left side of back of scalp just behind external injury No. 1. .(3) A slightly curved incised injury 6" x 1/4" bone deep over the right side of back of scalp. The skin flap in between exteran injury Nos.2 and 3 is lifted to 3". .(4) A lacerated injury 2 1/2" x 1/4" bond deep over the right side of parietal region. .(5) A slightly oblique incised injury 3" x 1/2" bone deep fronto parietal region of the scalp, on the left side. .(6) Ahorizontal lacerated injury 3" x 1/2" bone deep across external injuries 4 and 5 in front. .(7) A lacerated injury 1/2" x 1/4" x 1/4" over the back of left wrist with contused swelling on the back of wrist and hand. .(8) A lacerated injury 3/4" x 1/4" x 1/2" over the back of right hand in the middle. .(9) An incised injury in between the right index finger and ring finger 1"x 1/4" x 1/2" cutting the web. .(8) A lacerated injury 3/4" x 1/4" x 1/2" over the back of right hand in the middle. .(9) An incised injury in between the right index finger and ring finger 1"x 1/4" x 1/2" cutting the web. .(10) An abrasion 1/4" x 1/8" on the back of right thumb distally. .(11)An incisedinjury penetrating the thorasit cavity 11/4" x 1/4" x 2 1/4" downwards, upwards and medaially on the right infra-scapular region. .(12) A contused swelling over the right infraclavicular region 3" x 2"." Internally the medical officer found the following injuries: ."(1) Both bones of left forearm broken in the lower part and extravasation of blood into the muscles present corresponding to external injury No.7. .(2) Proximal phalanges of right index and right finger is broken corresponding to external injury No.9. .(3) Distal phalanx of right thumb is broken, corresponding to external injury No.10. There was extravasation of blood into the muscles of the right infra-clavicular region. P.W.4 noticed fracture of second and third ribs on the right side. Right thoracic cavity constrained 4 ounces ol dark fluid blood. An incised wound 1/2" x 1/4" x 1" was noticed over the posterior aspect of lower lobe corresponding to external injury No. 11. There was also extravasation of blood in the tissues ol right scalp. There was no fracture of bone. In the opinion of the doctor, the deceased would appear to have died of shock and haemorrhage due to multiple injuries and mainly due to the injury on ‘the right lung about 24 to 32 hours prior to conduct of autopsy. Ex.P-3 is the post-mortem certificate. External injuries 1,2,3,5,9,10 and 11 could have been caused by the iron portion of M.O.I and the external injuries 4,6,7,8 and 12 could have been caused by any stick like M.O.2. The injured could have survived for about 5 minutes after sustaining external injury No.11, with its corresponding internal injury. 6. During the course of investigation P.W.12 seized Exs.P-19and P-20 judgments in the civil litigation between the deceased and the mother of A-l. P.W.12 forwarded the material objects seized during investigation for chemical analysis through court. Exs.P-14 and P-15 are the reports of the chemical analyst and serologist respectively. 7. After completing investigation P.W.12 laid the charge sheet against appellants before the committal court on 37. 1985. .8. Exs.P-14 and P-15 are the reports of the chemical analyst and serologist respectively. 7. After completing investigation P.W.12 laid the charge sheet against appellants before the committal court on 37. 1985. .8. When the appellants were examined under Sec.313, Crl.P.C. to explain the incriminating circumstances appearing against them in evidence, they chose to deny their complicity in the crime. A-l claimed, that the land where the occurrence had taken place was in his possession. He staled that the evidence of P.Ws.l to 3 and 5 was false. A-2 was not present at the scene. The scene land extending to one acre and sixty-two cents was enjoyed by his mother Thirumayammal and after her life time, he was in possession and enjoyment of the same. On the morning of 15. 1985 with two labourers he levelled the ground and after leaving his cart near the karuvela tree and tying the bulls at the salai, he returned home. On the morning of ] 5. 1985 he went over to the land to dig earth, but labourers had not turned up. To his surprise, he noticed the deceased and 4 others armed with Valayam and slicks’. The deceased asked A-1 to get out of the land. He retorted stating that he was onlydigging earth in his own land and as to why he has to get out of the land. A wordy altercation ensued during the course of which deceased cut on his left neck resulting in a bleeding injury. The other persons along with the deceased attempted to kill him. In fright, he picked up the iron rod which was lying nearby and in exercise of right of private defence of person and properly, he attacked them. They ran away southwards. At 8 a.m. he went over to Oothiyur Police Station and made an oral complaint to the Sub Inspector of Police. Sub Inspector of Police told him that he had information of a murder and hence directed A-l towait at the police station. A-l requested the Sub Inspector of Police to send him to the hospital since his. neck injury was causing immense pain. Without paying heed to his request the Sub Inspector of Police left the police station. At 10 p.m. the Sub Inspector of Police and Inspector of Police saw the injury on his neck but did not choose to send him to the hospital for treatment. neck injury was causing immense pain. Without paying heed to his request the Sub Inspector of Police left the police station. At 10 p.m. the Sub Inspector of Police and Inspector of Police saw the injury on his neck but did not choose to send him to the hospital for treatment. On the next morning, his advocate C.Krishnamurthy requested the police officers to send him to the hospital for treatment. Even the request of the counsel was not heeded to. A-2 would have it that he did not go to the land either on 15. 1985 or 15. 1985. He was taken to the police station from his house. He noticed an injury on the neck of his father. A-l had appended along with his statement under Sec.313, Crl.P.C. several documents relating to civil litigations and had prayed for consideration of those documents as an integral part of his statement. Though the appellants did not examine any witnesses on their behalf, they chose to mark Exs.D-1 to D-3, which are respectively kist receipt, memo filed by A-l before the Judicial II Class Magistrate, Kangeyam on 15. 1985 and the order extending remand. 9. The learned trial Juidge, on appreciation of the oral and documentary evidence, held that A-2 would be liable only under Sec.323,I.P.C. though A-l would be guilty of murder. In that view, he dealt with them as stated earlier. .10. Mr.N.Natarajan, learned Senior Counsel representing both the appellants contended, that there was intrinsic evidence to show, that the disputed land.to an extent to 1.62 acres was in the possession of the accused and it was the deceased and his party who had entered into the said piece of land and committed aggression. He pointed out that even if the deceased had taken possession of the land in execution of the decree on 30.1.1976, it was apparent from the evidence of the deceased himself in his deposition in O.S.No.182 of 1976, recorded on 7. 1978, that thereafter the mother of A-l had trespassed into the land and had also cultivated Ragi. He submitted that the conduct of A-l having dug earth on the earlier day, would further prove that he was in possession. On the fateful morning, the deceased had gone along with several others to the disputed land knowing fully well that the appellants would dig earth and therefore had gone prepared for committing acts of aggression. He submitted that the conduct of A-l having dug earth on the earlier day, would further prove that he was in possession. On the fateful morning, the deceased had gone along with several others to the disputed land knowing fully well that the appellants would dig earth and therefore had gone prepared for committing acts of aggression. He then submitted on the basis of Exs.D-2 and D-3 that A-l must have sustained an injury on his neck, which the prosecution has not chosen to explain. If that be so, there was doubt about the genesis of this occurrence. He vehemently urged, that A-1 was entitled to the exercise of right of private defence of person and property and hence, he should have been exonerated by the trial court. He contended that A-2 should have been acquitted on the basis of discrepancy between Ex.P-1 and the medical evidence. In passing he submitted, that there appeared to be some contradiction between the oral and medical evidence. Finally he would invite the court to consider the nature of offence committed by A-l, on the totality of facts. 11. On these contentions we have heard Mr.S.Shanmughavelayutham, learned Additional Public Prosecutor. He contended, that the eye witness account of P.Ws.l to 3 was unassailable. The medical evidence fully supported the oral evidence regarding tf is incident. The civil court record produced by the prosecution was sufficient enough to hold that the deceased was in possession of 1.62 acres of uncultivated land which was the subject matter of civil litigation, between the mother of A-l and the deceased. He would vehemently urge that no case had been made out for interference and further circumstances were lacking to modify the offence into one of culpable homicide not amounting to murder. .12. We have carefully considered the divergent contentions placed before us by either counsel. The occurrence was admittedly as a result of dispute regarding land. The disputed land to an extent of 1.62 acres is situated at Eerasanapalayam village. This piece of land along with the adjacent pieces of land was called Santhikaltu thottam. 1.62 acres stood situated in S.Nos.769/2 and 770/2. The dispute between Thirumayee Ammal, the mother of A-l and the deceased commenced sometime in 1971, approximately 14 years prior to occurrence. The disputed land to an extent of 1.62 acres is situated at Eerasanapalayam village. This piece of land along with the adjacent pieces of land was called Santhikaltu thottam. 1.62 acres stood situated in S.Nos.769/2 and 770/2. The dispute between Thirumayee Ammal, the mother of A-l and the deceased commenced sometime in 1971, approximately 14 years prior to occurrence. The first suit was filed by Thirumayee Ammal against Palanisamy Gounder and the same was numbered as O.S. No.418 of 1971, on the file of District Munsifs Court, Dharapuram. In the written statement filed by the deceased in the afores-tated suit dated 29. 1971, he has categorically stated, that Thirumayee Ammal had encroached upon this disputed land about 2 months prior to the filing of the written statement, by destroying the ridge in between. A certified copy of the written statement of the deceased was filed along with the statement of A-l under Sec.313, Crl.P.C. Another document filed along with the statement of A-l shows, that Thirumayee Ammal had obtained electrical connection for pumping the well, corresponding to that partition of the disputed land in S.No.770/2. The deceased filed O.S.No.852 of 1971 on the file of the District Munsifs Court, Dharapuram against Thirumayee Ammal for declaration that the disputed land belonged to him. Even in that suit, the deceased had stated that for the past three month.‘Thirumayee Ammal, the mother of A-l had trespassed into a portion of the land after destroying the intervening ridge. The suit was filed on 211. 1971. Admittedly from about August, 1971 Thirumayee Ammal was in possession. An ex parte decree was passed in O.S.No.852 of 1971 and to set aside the same O.S.No. 182 of 1976 on the file of the same District Munsifs court was preferred by Thirumayee Ammal, after an abortive attempt to have it set aside in the earlier suit itself. While deposing as D.W. 1 in O.S.No.182 of 1976, the deceased has stated that in execution of the decree in O.S.No.852 of 1971, he had taken possession of the disputed land. Thirumayee Ammal after having lost in her attempt to have the ex parte decree set aside by a petitioner, had chosen to institute O.S.No. 1S2 of 1976. Deceased had deposed as D.W.I in O.S.No. 182 of 1976, on 7. 1978. Thirumayee Ammal after having lost in her attempt to have the ex parte decree set aside by a petitioner, had chosen to institute O.S.No. 1S2 of 1976. Deceased had deposed as D.W.I in O.S.No. 182 of 1976, on 7. 1978. He has admitted in cross-examination that at the time when he filed the suit Thirumayee Ammal had encroached upon the said land and was in possession. He has also admitted that in the earlier suit Thirumayee Ammal had not only claimed title but along possession as well. The damaging admission of the deceased is that on certain occasions the disputed land was cultivated by Thirumayee Ammal and her group, while on certain occasions he cultivated the same land. However at that point of time Thirumayee Anmmal had cultivated Ragi in the disputed land. This admission of the deceased, on 10th July, 1978, has very great relevance, since it is the prosecution case that thedeceased had taken possession of the disputed land in execution of the decree in O.S.No.852 of 1971 on 30.1.1976. The evidence regarding taking of possession does not appear to be clinching, which we will discuss a little later. Even if that be that the deceased had taken possession of the land in execution of the decree on 30.1.1976, it is clear and categoric from his evidence on 7. 1978, that the mother of A-l was then in possession and she had cultivated ragi crops also. There is no evidence to show that after 1978, the deceased against recovered possession from the mother of A-l. 13. Exs.P-10 and P-11 are relied upon the prosecution to show delivery of properly to the deceased, in execution of the decree, on 30.1.1976. The Court Amin who had executed the decree, has not been examined. The witnesses who had attested the execution memo Ex.P-11, had also not been put into the witness-box. Ex.P-10 is a warrant to the, bailiff in E.P.No.7 of 1976 in O.S.No.852 of 1971, on the file of the District Munsifs Court, Dharapuram, directing him to give possession of 1.62 acres of land, with which we are now concerned, in this prosecution. While returning Ex. P10 the Amin V.Venugopalan had made an endorsement that possession was delivered. Ex. P-ll is the delivery memo which related to the handing over of possession of the land decreed exparte, to the deceased. While returning Ex. P10 the Amin V.Venugopalan had made an endorsement that possession was delivered. Ex. P-ll is the delivery memo which related to the handing over of possession of the land decreed exparte, to the deceased. The witness examined to substantiate Exs.P-10 and P-ll is the then court Assistant Babujan (P. W.8). He has spoken of the ex parte decree in the suit on 14. 1975. He has affirmed that in execution of the decree ordered in E.P.No.7 of 1976 Exs.P-10 and P-ll were produced in court, after delivery of property. P.W.8 was not present at the time of delivery of property to the deceased. He has categorically admitted that Amin Venugopal was working in the court at Gobichettipalayam, during this trial. The prosecution must have examined Amin Venugopal to conclusively establish that the delivery was not paper delivery but was one of actual physical possession having been handed over to the deceased. P.W. 1, who is a nephew of the deceased and who has also spoken of the deceased having taken possession of the disputed land through court, has frankly admitted that while possession was so taken, he was not present. He has also admitted that in this piece of land to the extent of 1.62 acres, the deceased had never indulged in cultivation. An evasive reply was given by him that he was unaware if the deceased had not enjoyed this piece of land at all. P.W.2 has not spoken, about his elder brother the deceased, having taken possession of the disputed land, in execution of the decree obtained by him. P.W. 3 Palani Ammal, wife of deceased Palanisamy Gounder has of course stated of her husband having taken possession of the land, after he succeeded in the civil suit. She has not claimed that she was present when possession was taken from the Amin, by her husband. She has stated that the surveyor, advocate and others were present when such possession was handed over. She has further added that her husband did not cultivate the said piece of land since he was not permitted to cultivate, having been obstructed, by the opposite party. She has also admitted that Thirumayee Ammal was cultivating the land adjacent to this disputed land by herself. She has further added that her husband did not cultivate the said piece of land since he was not permitted to cultivate, having been obstructed, by the opposite party. She has also admitted that Thirumayee Ammal was cultivating the land adjacent to this disputed land by herself. If the admissions of the deceased and the oral evidence of P.Ws.l, 3 and 8 are taken together, it is fairly clear that in all possibility after Thirumayee Ammal, A-l had been in possession of the land. Even if we hold that in fact there was delivery of property to the deceased on 30.1.1976, apparently on 7. 1978 Thirumayee Ammal was again in possession of the same piece of land and had also cultivated Ragi. This significant admission of the deceased in the civil proceeding, certainly reveals that A-l must have be en in possession of the land or in any event, then- was serious dispute about possession of 1.62 acres of land in Santhikattu thottam. It is in this background that we have to refer to settlement deed executed by Thirumayee Ammal in favour of A-l on 22nd April, 1980, wherein this piece of land forms the subject matter of the property schedule, along with some other pieces of land. This settlement is quite in consonance with the case of the appellants, that A-l was in possession of the disputed land. We also have evidence of litigation in 1983 between the parties. O.S.No.78 of 1983 was filed by the deceased, against Thirumayee Ammal and A-l, apart from others. The suit was for an injunction to restrain the defendants from interfering with his possession, apart from a claim for damages for having cut and carried away tamarind from the trees in the disputed land. A part of the schedule of property, relates to the scene of crime, with which we are concerned. Ex.P-20 shews that Thirumayee had lost in her application in O.S.No.182 of 1976 to condone the delay in filing the documents. Ex.P-20 also relates to the appeal preferred against the verdict in O.S.No. 182 of 1976, where the question to be decided was whether the suit to set aside the ex parte decree in O.S.No.852 of 1971 was maintainable, after the plaintiff had allowed the petition, to set aside the ex parte decree, to be dismissed. I.A.No.226 of 1979 for receipt of documents was allowed while A.S.No.30 of 1979 was dismissed. I.A.No.226 of 1979 for receipt of documents was allowed while A.S.No.30 of 1979 was dismissed. There is no evidence that after 1983, there was any subsisting litigation between the parties. However, A-l has filed Ex.D-1 to show payment of kist on 10. 984, in respect of patta 820, which according to him includes the disputed land. Kist receipts clearly show the patta number and it is agreed by both par ies, that survey number will not be mentioned in last receipts. P.W.7 the Village Administrative Officer, who has been confronted with Ex.D-1, has stated that he did not remember in which patta number the disputed land would fall. He admited having issued Ex. D-l, but would add that it was not for Santhikattu thottam. He was unable to state as to which piece of land Ex.D-1 had been issued, without referring to the village records. The investigating officer who is bound to have collected evidence, oral and documentary, about person in possession of the disputed land, had failed to act diligently. He had admitted that during investigation he did not attempt to find out as to the person who was paying kist for the disputed land. He did not even check up the village adangal for this purpose. As already stated the evidence regarding possession of the disputed land by the deceased does not commend itself for safe acceptance and in any event, the claim of possession of the said land by A-l, cannot at all be brushed aside, as improbable. 14. It is in this background of inconclusive evidence regarding possession of the disputed land by the deceased, we have to scrutinise the other evidence inclusive of the eye witness account. P. W.5, who claims himself to be the farm servant of the deceased, had complained to the latter on the night of 15. 1985, that both the appellants had removed in the evening, mud from the uncultivated disputed land. P.Ws.l and 3 were then present. The deceased had directed P.W.5 to fetch the lessees of the land, to the scene land, on the next morning. He also directed P.W.I to get his father P. W.2, on the next morning, to this piece of land. P.Ws.l and 3 were then present. The deceased had directed P.W.5 to fetch the lessees of the land, to the scene land, on the next morning. He also directed P.W.I to get his father P. W.2, on the next morning, to this piece of land. If as claimed by P.Ws.l and 3, the deceased was in possession of the land and the appellants had attempted to commit aggression on the earlier evening, one would have naturally expected the deceased to have complained to the village Panchayat or the local police, that inspite of his possession of the disputed land by virtue of court orders, the appellants had trespassed and were committing thefts as well. The deceased would not indulge himself in such an exercise. Contrary to the normal expectation, he would choose to collect a number of people to go over to the scene of occurrence on the next morning, being fully aware that the accused would turn up to continue their digging operation. Atleast then he should have taken some respectable villagers to the scene, even which, he did not choose to do. He had gone to the scene along with his elder brother, wife and nephew. The lessees have not been examined to show, that in fact on lease, they were in possession of thedisputed land. The evidence of P.W.5 would be of no value, on this court. The evidence of P.W.1 shows that when A-l attempted to dig mud, deceased spoke thus to A-l. This statement of the deceased further confirms that the dispute was still alive and possession was still at the stage of clamour between two opposing litigants. The only saving feature available, on the admission of the deceased in civil suit, is that from July, 1978, the mother of A-l was in possession. To recapitulate, there is no evidence to show that after 1978, the deceased had obtained possession of this land either from Thirumayee Ammal or A-l. Even in Ex.P-1 the first information report preferred by P.W.1, he has stated as follows: The totality of circumstances pointed out by us, does cast a suspicion, on physical possession of this land, claimed by deceased. 15. 15. Before we consider the ocular version of the incident, it is better to dispose of the contention of the defence counsel, that A-1 has sustained an injury on the neck, during the course of this incident, as a result of an attack on him by the deceased. A-1 is specific that it was the deceased who had the valayam. A-l claims to have gone to the police station soon after the occurrence, and reported before P.W.11, the Sub Inspector of Police. It is also the defence case, that advocate Krishna-moorthy had visited the police station on 15. 1985, and knew of A-l having sustained an injury in this occurrence. A-l also claims that inspite of his request, P.Ws.l1 and 12 did not send him to the hospital for treatment of the injuries since P.W.ll told him that there was information about the death of a person and so he had to wait at the police station till his return from the scene of occurrence. No doubt it is easily possible to claim, that injury had been sustained, more so when medical evidence is not available to substantiate it. But it is here, that the conduct of A-1, after the advocate had allegedly met him, assumes significance. Ex.D-2, a memo was filed on behalf of A-1 before the Judicial II Class Magistrate, Kangeyam on 15. 1985. In this memo A-l has stated, that he was attacked by the deceased and his men with a Valayam leading to his sustaining injuries. He has also stated that he was in police custody from 8 a.m. on 15. 1985. He had prayed, that the Magisi trate may be pleased to send him to the medical officer for treatment and issue of a certificate. On such an application preferred through an advocate by A-1, the normal expectation would be that the Magistrate should have forwarded A-1 to the Government hospital for examination and treatment. If in feet A-1 had not sustained any injury, the medical certificate would have clearly revealed the same and exposed the falsehood of the defence. In the alternative when allegations have been made of illegal custody at the police station and sustaining of injuries, on attack by the deceased, the Magistrate himself could have seen if A-1 had really an injury on his neck, before he decided to negative his prayer. Ex.9.2 contains the order of the Magistrate dated 15. In the alternative when allegations have been made of illegal custody at the police station and sustaining of injuries, on attack by the deceased, the Magistrate himself could have seen if A-1 had really an injury on his neck, before he decided to negative his prayer. Ex.9.2 contains the order of the Magistrate dated 15. 1985. The order shows, that the prosecution had opposed vehemently the plea made by A-1. The order further reads, that when A-1 was arrested at 9 p.m. on 15. 1985, according to the prosecution, he had not told the arresting officer, that he was attacked by the deceased and his men. The prosecutor further argued, in terms of the order that A-1 had no visible injury. It was also represented on behalf of the prosecution, as could be seen from the order, that when examined by the Magistrate at the time of remand, neither of the accused told him that they were attacked by the deceased or his mean or that they had injuries on them. The prosecution further stated to the Magistrate, that if the accused had injuries the same would have been noted in the prison register. On the basis of the arguments of the Public Prosecutor, the Magistrate held that the belated statement of A-1 on 15. 1985 was not acceptable. The Magistrate has further stated in the order, that if injuries had been sustained by A-1, he could have them treated by the prison doctor, during the course of his usual inspection. To say the least, the approach to this j important significant aspect, by the Magistrate, has been totally wooden. Nothing would have been more easy for the Magistrate, than to have satisfied himself if A-1 had injuries on his person. We cannot overlook, that at the time of remand, the policemen would be present along with the accused and if as claimed by A-1, he was in illegal custody from 8 a.m. on 15. 1985 it would be all the more reasonable, that he had been prevented from speaking about his injuries to the Magistrate. We cannot overlook, that at the time of remand, the policemen would be present along with the accused and if as claimed by A-1, he was in illegal custody from 8 a.m. on 15. 1985 it would be all the more reasonable, that he had been prevented from speaking about his injuries to the Magistrate. It will be very odd to expect A-1 to have told the police of his having been attacked by the deceased and his men, when he was arrested and even if he had so stated, it would be strange to expect the investigating agency to accept such a statement having been made by tie accused. We are unable to exclude the case of A-1 that his advocate had seen him at the police station with injury and thereafter chose to piefer Ex.D-2. None of the reasons given by the learned Magistrate in Ex. D-2 to reject the plea of A-1, appears to be tenable. The learned Sessions Judge while considering this aspect has stated in paragraph 24, that A-1 claimed even in court during trial, that the injury (scar) was visible on the neck. The trial Judge was prepared to presume, that the accused has sustained an injury and in any event had a bleeding injury on 15. 1985, when his advocate had seen him at the police station. In paragraph 25, the learned Sessions Judge had chosen to discuss, if the injury had been sustained by A-1, during the occurrence of later. The line of reasoning is that if A-1 had sustained the injury in this occurrence, he would have certainly proceeded to the police station and ^referred a complaint or in the alternative gone over to the hospital for treatment. The claim of A-1 that he was at the police station at 8 a.m. on 15. 1985 was rejected since P.W.11 the Sub Inspector of Police did not agree about the presence of A-1 at the police station. Further it was held that P.W.11 could not have received information about the death of the deceased even while A-1 was present at the police station, taking note or the distance between the scene of occurrence ar d the police station. Further it was held that P.W.11 could not have received information about the death of the deceased even while A-1 was present at the police station, taking note or the distance between the scene of occurrence ar d the police station. Diluting the presumption in the earlier paragraph, that A-1 could have had an injury the learned Judge went on to hold, that even if A-1 had an injury, it could not have been deep as otherwise he would have complained to the Prison authorities and taken treatment. Therefore the injury on A-1 if at all must have been a sample and small injury. 16. When A-1 had claimed at the earliest point of time before, court, that he had been injured and the trial court was also prepared to hold that A-1 could have sustained an injury, even if it be simple, the necessary inference which follows, is that A-1 could have had an apprehension of death or grievous hurt at the hands of the deceased or his party at or about the time of this occurrence. To claim right of private defence of person or property, it is not necessary that the accused must sustain an injury and it would suffice, if there was grave apprehension of deatth or of grievous hurt. We have already stated that without taking recourse to law, the deceased had decided to go to the disputed land with his men, to tackle the appellants, who were expected to come over there at or about the time of occurrence. It is possible that the prosecution party went with arms, but the evidence is not very clear if all of them had arms. It is also possible to hold, that the prosecution party did not intend to attack the accused, but due to their large number were bent upon causing trouble toA-l and A-2 to prevent them from digging mud in the disputed land, which exercise they had adopted, even on the earlier day. If as claimed by the eye witnesses A-l had taken out the spade from the cart and attempted to dig the earth and then the deceased intervened, there would be no need for A-l to go over to the cart over again to fetch a valayam, for the spade itself was a formidable weapon, sufficient to attack the deceased, even fatally. It is admitted that A-l replied to the deceased as follows: And then brought to the scene Valayam from the cart. As already stated, if A-l was already armed with a spade, the need for procuring a Valayam is remote and hence it is probable to hold, that the deceased was in possession of the valayam and as claimed by A-l, he had sustained an injury on his neck, even if it be simple as held by the learned sessions Judge, due to an attack on him by the deceased. It was then in all probability, that the appellants father and son respectively, chose to attack the deceased. The only injury which according to the doctor had resulted in the death of the deceased is injury No. 11, a penetrating incised injury on the thoracic cavity 1 1/4“x 1/4” x 1/4“on the right side on the infra scapular region. A look, at the other injuries, shows that they were just bone deep or 1/4” deep showing thereby, that they would not be, as a result of forcible cuts aimed on the victim. They are certain lacerated injuries found on the deceased which have been attributed to A-2 who had wielded a bamboo stick. The nature of injuries found by the medical officer show, that the object or both the appellants was not to cause the death of the deceased, but was certainly to cause harm to him, when the deceased and his group had intervened and prevented them from digging mud. The learned Sessions Judge in paragraphs 28 of his judgment has found, that A-l did not have the intention to cause the death of the deceased, though he must be imputed with the intention, that by causing the injury, he had caused, the deceased was bound to die. Again in paragraph 30 of his judgment, the learned sessions Judge has reiterated that both the appellants could not have had the intention of killing the deceased, though they should have intended to attack him. Again in paragraph 30 of his judgment, the learned sessions Judge has reiterated that both the appellants could not have had the intention of killing the deceased, though they should have intended to attack him. It is on these reasoning that the learned sessions Judge had chosen to convict A-2, only for an offence under Sec.323, I.P.C. We are unable to agree with the reasoning of the learned trial Judge that A-2 would be liable only for an offence under Sec.323, I.P.C. and not for murder with the and of Sec.34, I.P.C. If the learned Sessions Judge had any doubt about the participation of A-2, in view of the injury attributed to him not having been correlated, or a part attributed to him not having been stated in the first information report, the learned sessions Judge ought to have acquitted him, giving the benefit of doubt. If the learned Sessions Judge found that A-l was guilty of murder and further opined that A-2 could not be exonerated totally, the only possible logical conclusion would be, to convict A-2 also for murder in pursuance of common intention with his father A-l. This via-media approach does not commend itself for acceptance. If the State had filed an appeal against acquittal, on the murder change, challenging the verdict of the learned trial Judge, in so far as it related to A-2, we would have certainly considered the nature of offence that A-2 could be stated to have committed. That not having been done by the prosecution, it will be an exercise in futility to go about discussing the offence committed by A-2, at this distance of time nearly 7 years after the alleged occurrence. 17. We find an observation from the judgment of the learned Sessions Judge, that the occurrence had not taken place in the disputed land, but in the adjacent cotton field of the deceased and therefore A-l would not be entitled to the right of private defence, for the deceased and his men and not trespassed into the property where A-l was digging earth. We are unable to accept this finding, for at the earlier point of time, when complaint was preferred by P.W. 1, he has stated as follows: The above averments clearly show, that the deceased as well as P. W. 1 had entered into the disputed land. We are unable to accept this finding, for at the earlier point of time, when complaint was preferred by P.W. 1, he has stated as follows: The above averments clearly show, that the deceased as well as P. W. 1 had entered into the disputed land. The substantive evidence in Court indicates, that the karuvela tree was in the disputed land, where the bullock-cart was stopped by A-2. Though the prosecution party now claim, that 10 feet away from Karuvela tree in the paruthikadu, deceased was standing, it is apparent that the prosecution had attempted to suppress the fact of the deceased having entered into the disputed land, which has been clearly stated in Ex.P-1. We cannot also overlook the evidence of the investigating officer, that some distance away from the karuvela tree blood stains were seized. Though the scene sketch shows some distance between the spot where the blood stains were noticedand the Karuvela tree, P.W.1 has affirmed that the paruthikadu and the Karuvela tree, were within a short distance of about two feet. Whatever it be, pictured as a whole, it is clear, that the prosecution party had gone to the scene land, either to question or to challenge the accused on the fateful morning, knowing fully well that they would be present there, to dig mud. It was the deceased who had commenced the quarrel by preventing A-l from digging mud. Though we are prepared to accept that P.Ws.l to 3 were present during the occurrence, we are unable to conclude, that without any provocation whatever, A-1 and his son A-2 suddenly attacked the deceased. Ex. D-3, remand report also shows that there was a wordy quarrel between the deceased and A-l, before the occurrence took place. In view of our not being prepared to accept that the deceased was in possession of the land and further on the probability of A-l having apprehended, death or grievous hurt, we are inclined to hold that A-1 had a right of private defence of person and property as well since as stated earlier after 1978, there is no evidence of Al having been dispossessed. However, the evidence clearly shows that after the initial attack, the deceased attempted to run away, but still he was chased for a short distance and attacked by both the accused. However, the evidence clearly shows that after the initial attack, the deceased attempted to run away, but still he was chased for a short distance and attacked by both the accused. The distance to which, the deceased had run is not too long, to exclude the right of private defence, which enures in favour of the appellants. The occurrence had taken place so suddenly, within a short span of time, and therefore to draw a line, to exclude the benefit of private de fence to the accused, on the basis that apprehens ion had vanished, once the deceased commenced running away, would be too artificial, on the present conspectus of facts. It will be more appropriate to hold that the appellants had exceeded the right of private defence. This view of ours on the mens rea, gets reflected from the observations of he learned Sessions Judge, which we have extracted earlier. The trial judge who had seen the witnesses, was in a position to formulate mens rea, on their evidence, and based on their demeanour We cannot also lose sight, that civil disputes have been pending for several years and no attemp was made by the appellants tocauseany harm to the deceased or his party. The occurrence itself is unfortunate and the cause was the vain adventure attempted by the deceased. The manner in which injuries had been caused, most of them superficial on the back of the head with no fractures, is one more indication that the intention was not to cause the death of the victim. Ofcourse.there was a fracture in the left forearms correlated to the attack on the deceased by A-2, but again hand is not a vital part. The fatal injury obviously had been caused in the course of the altercation, on the back of the victim in the scapular region, which unfortunately had penetrated into the thoracic cavty. It will be very difficult to hold, that this Very injury No.11 was intended to be caused by A-l in the background, which we have detailed earlier. In this view, we set aside the conviction and sentence imposed on A-l for murder and instead convict him under Sec.304, Part II, Indian Penal Code,for he could be presumed to have had the knowledge that by his act, he was likely to cause the death of the deceased. In this view, we set aside the conviction and sentence imposed on A-l for murder and instead convict him under Sec.304, Part II, Indian Penal Code,for he could be presumed to have had the knowledge that by his act, he was likely to cause the death of the deceased. For the altered conviction, we sentence A-l to undergo rigorous imprisonment for five years. As far as A-2 is concerned, who in our view would be liable for an offence under Sec.304(1) read with Sec.34, I.P.C., he does have the advantage, since the State has not preferred an appeal challenging his acquittal on the charge of murder. We confirm his conviction and sentence imposed under Sec.323, I.P.C., by the learned’ Sessions Judge. 18. In the result, Crl.A.No.198 of 1986 preferred by the second accused shall stand dismissed. Crl.A.No.212 of 1986 preferred by the first accused shall stand allowed to the limited extent as indicated above.